EXHIBIT 10.2
Effective Date: October 26, 1998
INCENTIVE STOCK OPTION
Granted by
TEMPTRONIC CORPORATION
(hereinafter called the "Company")
to
William M. Stone
(hereinafter called the "Holder")
Under the Company's
1998 Incentive and Non-Statutory Stock Option Plan
For valuable consideration, the receipt of which is hereby acknowledged,
the Company hereby grants to the Holder the following option:
1. Grant of Option. Subject to the terms and conditions hereinafter set
forth, the Holder is hereby given the right and option to purchase from the
Company, at an option price of $3.75 per share, an aggregate of 50,000 shares
of the Company's Common Stock, $.01 par value (the "Common Stock"), at the
time and in the manner herein provided. Subject to earlier termination
pursuant to Section 8 hereof, the Holder shall have the right and option to
purchase any or all of such shares in accordance with the following schedule:
(a) 10,000 of such shares on and after the first anniversary of the
effective date of this option as set forth above (the "Effective
Date"); and
(b) an additional 10,000 of such shares on and after each of the next
succeeding four anniversaries of the Effective Date, until the
Holder shall have the right to purchase all of the shares.
This option shall terminate in all respects, and all rights and options to
purchase shares hereunder shall terminate, ten years from the Effective Date.
The right to purchase shares hereunder shall be cumulative.
2. Exercise of Option. Purchase of any shares hereunder shall be made
by delivery to the Company of a written notice of exercise specifying the
number of shares with respect to which the option is to be exercised and the
address to which the certificate representing such shares is to be mailed,
accompanied by (a) cash, certified or bank check or postal money order payable
to the order of the Company for an amount equal to the option price of such
shares, (b) shares of Common Stock of the Company having a fair market value
equal to or less than the option price of such shares accompanied by cash or a
certified or bank check or postal money order in an amount equal to the
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difference, if any, between the option price of such shares and the fair
market value of such shares. For the purpose of the preceding sentence, the
fair market value of the shares of Common Stock so delivered to the Company
shall be determined in accordance with procedures adopted by the Company's
board of directors (the "Board") or its option committee (the
"Committee").
3. Conditions and Limitations. As a condition precedent to any exercise
of this option, the Holder (or if any other individual or individuals are
exercising this option, such individual or individuals) shall deliver to the
Company an investment letter in form and substance satisfactory to the Company
and its counsel which shall contain among other things a statement in writing:
(a) that the option is then being exercised for the account of the Holder and
only with a view to investment in, and not for, in connection with or with a
view, to the disposition of, the shares with respect to which the option is
then being exercised; (b) that the Holder has been advised that Rule 144 of
the Securities and Exchange Commission (the "Commission"), which permits the
resale, subject to various terms and conditions, of small amounts of
"restricted securities" (as therein defined) after they have been held for
two years, does not now apply to the Company because the Company is not now
required to file, and does not file, current reports under the Securities
Exchange Act of 1934 (the "Exchange Act"), nor is there publicly available
information concerning the Company substantially equivalent to that which
would be available if the Company were required to file such reports; (c) that
the Holder understands that there is no assurance that the Company will ever
become a reporting company under the Exchange Act and that the Company has no
obligation to the Holder to do so; (d) that the Holder and Holder's
representatives have fully investigated the Company and the business and
financial conditions concerning it and have knowledge of the Company's then
current corporate activities and financial condition; (e) that the Holder
believes that the nature and amount of the shares being purchased are
consistent with Holder's investment objectives, abilities and resources; and
(f) that the Holder understands, acknowledges and agrees to comply with the
rights of first refusal and repurchase rights of the Company set forth or
referred to in Section 9 hereof and any other restrictions on the disposition
of such shares set forth or referred to herein. The restrictions imposed by
this Section and any investment representation made pursuant to this Section
shall be inoperative upon the registration with the Commission of the stock
subject to this option or acquired through the exercise of this option.
The Holder also agrees for a period of up to 180 days from the effective
date of any registration of securities of the Company under the Securities Act
of 1933, as amended (the "Securities Act"), upon request of the Company or
the underwriters managing any underwritten offering of the Company's
securities, not to sell, make any short sale of, loan, grant any option for
the purchase of, or otherwise dispose of any shares issued pursuant to the
exercise of this option, without the prior written consent of the Company and
such underwriters.
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4. Delivery of Shares. Within a reasonable time following the receipt
by the Company of payment of the option price for the shares to be purchased
hereunder and the investment letter referred to in Section 3, the Company will
deliver or cause to be delivered to the Holder (or if any other individual or
individuals are exercising this option, to such individual or individuals) at
the address specified pursuant to Section 2 hereof a certificate or
certificates for the number of shares with respect to which the option is then
being exercised, registered in the name of the Holder (or the name or names of
the individual or individuals exercising the option, either alone or jointly
with another person or persons with rights of survivorship, as the individual
or individuals exercising the option shall prescribe in writing to the
Company); provided, however, that such delivery shall be deemed effected for
all purposes when a stock transfer agent shall have deposited such certificate
or certificates in the United States mail, addressed to the Holder (or such
individual or individuals) at the address so specified; and provided further
that if any law, regulation or order of the Commission or other body having
jurisdiction in the premises shall require the Company or the Holder (or the
individual or individuals exercising this option) to take any action in
connection with the sale of the shares then being purchased, then, subject to
the other provisions of this paragraph, the date on which such sale shall be
deemed to have occurred and the date for the delivery of the certificates for
such shares shall be extended for the period necessary to take and complete
such action, it being understood that the Company shall have no obligation to
take and complete any such action.
5. Adjustments Upon Changes in Capitalization. The existence of this
option shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of
bonds, debentures, preferred or prior preference stock ahead of or affecting
the Common Stock or the rights thereof, or the dissolution or liquidation of
the Company, or any sale or transfer of all or any part of its assets or
business, or any other corporate act or proceeding, whether of a similar
character or otherwise.
If the Company shall effect a subdivision or consolidation of shares or
other capital readjustment, the payment of a stock dividend, or other increase
or reduction of the number of shares of the Common Stock outstanding, without
receiving compensation therefor in money, services or property, then the
number, class, and per share price of shares of stock subject to this option
shall be appropriately adjusted in such a manner as to entitle the Holder to
receive upon exercise of this option, for the same aggregate cash
consideration, the same total number and class of shares that the owner of an
equal number of outstanding shares of Common Stock would own as a result of
the event requiring the adjustment.
Except as hereinbefore expressly provided, the issue by the Company of
shares of stock of any class, or securities convertible into shares of stock
of any class, for cash or property, or for labor or services, either upon
direct sale or upon the exercise of rights or warrants to subscribe therefor,
or upon conversion of shares of obligations of the Company convertible into
such shares or other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares of Common
Stock then subject to this option.
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6. Effect of Certain Transactions. If the Company is a party to a
merger or reorganization with one or more other corporations, whether or not
the Company is the surviving or resulting corporation, or if the Company
consolidates with or into one or more other corporations, or if the Company is
liquidated or sells or otherwise disposes of substantially all its assets to
another corporation (each hereinafter referred to as a "Transaction"), in
any case while this option remains outstanding: (a) subject to the provisions
of clause (c) below, after the effective date of such Transaction this option
shall remain outstanding and shall be exercisable in shares of Common Stock
or, if applicable, shares of such stock or other securities, cash or property
as the holders of shares of Common Stock received pursuant to the terms of
such Transaction; (b) the Board may accelerate the time for exercise of this
option, so that from and after a date prior to the effective date of such
Transaction this option shall be exercisable in full; or (c) this option may
be canceled by the Board as of the effective date of such Transaction,
provided that notice of such cancellation shall be given to the Holder and the
Holder shall have the right to exercise this option to the extent that the
same is then exercisable or, if the Board shall have accelerated the time for
exercise of this option pursuant to clause (a) above, in part or in full,
prior to the effective date of such Transaction.
7. Rights of Holder. No person shall, by virtue of the granting of this
option to the Holder, be deemed to be a holder of any shares purchasable under
this option or to be entitled to the rights or privileges of a holder of such
shares unless and until this option has been exercised with respect to such
shares and they have been issued pursuant to that exercise of this option.
The granting of this option shall not impose upon the Company any
obligations to employ or to continue to employ the Holder; and the right of
the Company to terminate the employment of the Holder shall not be diminished
or affected by reason of the fact that this option has been granted to the
Holder.
Nothing herein contained shall impose any obligation upon the Holder to
exercise this option.
Although this option is intended to qualify as an incentive stock option
under the Internal Revenue Code of 1986, the Company makes no representation
as to the tax treatment to the Holder upon receipt or exercise of this option
or sale or other disposition of the shares covered by this option.
At all times while any portion of this option is outstanding, the Company
shall: reserve and keep available, out of shares of its authorized and
unissued stock or reacquired shares, a sufficient number of shares of its
Common Stock to satisfy the requirements of this option; comply with the terms
of this option promptly upon exercise of the option rights; and pay all fees
or expenses necessarily incurred by the Company in connection with the
issuance and delivery of shares pursuant to the exercise of this option.
8. Transfer and Termination. This option is not transferable by the
Holder otherwise than by will or the laws of descent and distribution.
This option is exercisable, during the Holder's lifetime, only by him,
and by him only while he is an employee of the Company, except that in the
event that such employment terminates for any reason other than for cause as
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determined by the Company (in which event this option shall terminate on the
date of termination of employment) and other than by reason of death, the
Holder shall have the right to exercise this option within 90 days after the
date he ceases to be an employee of the Company (but not later than the
expiration date of this option) with respect to the shares which were
purchasable by him by exercise of this option at the time of such cessation of
employment. As used in this paragraphs, "cause" shall mean (a) any material
breach by the Holder of any agreement to which the Holder and the Company are
both parties, (b) any act (other than retirement) or omission to act by the
Holder which may have a material and adverse effect on the Company's business
or on the Holder's ability to perform services for the Company, including,
without limitation, the commission of any crime (other than ordinary traffic
violations), or (c) any material misconduct or material neglect of duties by
the Holder in connection with the business or affairs of the Company or any
affiliate of the Company. An employment relationship between the Company and
the Holder shall be deemed to exist, for purposes of this option, during any
period in which the Holder is employed in any capacity by the Company or any
subsidiary of the Company.
In the event of the death of the Holder while he has the right to
exercise this option, his executors, administrators, heirs or legatees, as the
case may be, shall have the right to exercise this option at any time within
one year after his death (but not after the termination date of this option)
with respect to the shares which were purchasable by the Holder as of the date
of his death.
9. Company Purchase Rights. During the term of this option and
thereafter, no shares purchased upon exercise of this option (or obtained by
way of stock dividend, stock split or other distribution with respect to such
shares) shall be sold, assigned, transferred, pledged, hypothecated or
otherwise disposed of, by operation of law or otherwise (collectively
"transferred") to any person at any time or times whatsoever, except as
specifically provided in this Section 9.
(a) Right of First Refusal. If at any time the Holder shall receive
a bona fide offer (an "Offer") in writing acceptable to him to purchase any
or all of his shares, the Holder shall give written notice to the Company of
the terms of the Offer, including the name of the offeror, the price and the
terms of payment. Thereupon, the Company shall have the right and option (the
"Buyback Option") for 60 days after such notice is given to purchase not
less than all the shares so offered, at a price (the "Buyback Price") which
shall be the lower of (i) the current fair market value of the Common Stock,
as determined by an independent appraiser within one year prior or 45 days
subsequent to the date of the Offer, and (ii) the price stated in the Offer.
The exercise by the Company of its right to purchase the shares upon
the terms of the Offer must be made by notice to the Holder prior to the
expiration of the applicable period referred to above. Such notice shall set
forth a time and place of closing no later than 30 days after the date of such
notice. At such closing, the Holder shall deliver the stock certificate or
certificates representing the shares, duly endorsed for transfer; and upon
such delivery the Company shall pay the Buyback Price to the Holder in cash or
by check.
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In the event that the Company does not elect to purchase the Holder's
shares as herein provided, then the Holder may sell, at any time within 30
days of the expiration of the option period provided herein, the number of
shares specified in the Offer to the person who made the Offer and pursuant to
the terms of the Offer. In the event that the Holder does not sell the shares
pursuant to the Offer within such 30-day period, the shares shall be subject
to the terms, provisions and restrictions provided for in this Section as if
the Holder had never submitted the sale notice to the Company as aforesaid.
(b) Repurchase Option. Upon termination of the Holder's employment
with the Company at any time, by either the Company or the optionee and for
any reason whatsoever including death or disability, the Company shall have
the option to repurchase (the "Repurchase Option") any or all of the
Holder's shares at the current fair market value of the Common Stock, as
determined by an independent appraiser within one year prior or 45 days
subsequent to the date of termination of the Holder's employment (the
"Repurchase Price"). The Company shall have the right to exercise the
Repurchase Option for the Holder's shares at any time within 90 days after the
termination of the Holder's employment.
In the event the Company shall be entitled to and shall elect to exercise
the Repurchase Option, it shall give to the Holder a written notice specifying
the number of shares which the Company elects to purchase and specifying a
date for closing hereunder which date shall be not more than 30 calendar days
after the giving of such notice. At such closing, the Holder shall deliver
the stock certificate or certificates representing the shares, duly endorsed
for transfer; and upon such delivery the Company shall pay the Repurchase
Price to the Holder in cash or by check.
For purposes of the Repurchase Option and the Buyback Option, the term
"shares" shall mean any and all new, substituted or additional securities or
other property issued to the Holder, by reason of his ownership of Common
Stock, in connection with any stock dividend, liquidating dividend, stock
split or other change in the character or amount of any of the outstanding
securities of the Company, or any consolidation, merger or sale of all, or
substantially all, of the assets of the Company. The Repurchase Option and
Buyback Option shall terminate on the effective date of a registration
statement under the Securities Act of 1933, as amended, pursuant to which
securities of the Company with an aggregate sale price in excess of $1,000,000
are sold to the public.
(c) Legends. Any certificate representing shares of stock subject
to the provisions of this Section 9 may have endorsed thereon one or more
legends, substantially as follows:
(i) "Any disposition of any interest in the securities
represented by this certificate is subject to restrictions,
and the securities represented by this certificate are subject
to certain options, contained in a certain agreement between
the record holder hereof and the Company, a copy of which will
be mailed to any holder of this certificate without charge
upon receipt by the Company of a written request therefor."
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(ii) "The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933 or under the
securities laws of any state and may not be pledged,
hypothecated, sold or otherwise transferred except upon such
registration or upon receipt by the Company of an opinion of
counsel satisfactory to the Company, in form and substance
satisfactory to the Company, that such registration is not
required."
10. Notice. Any notice to be given to the Company hereunder shall be
deemed sufficient if addressed to the Company and delivered at the office of
the Company, 55 Chapel Street, Newton, MA 02158, attention of the President,
or such other address as the Company may hereafter designate.
Any notice to be given to the Holder hereunder shall be deemed sufficient
if addressed to and delivered in person to the Holder at his address furnished
to the Company or when deposited in the mail, postage prepaid, addressed to
the Holder at such address.
11. Appraisal of Shares. Wherever in this option provisions are made
for a determination of the fair market value of the Common Stock by an
independent appraiser, such requirement shall be satisfied by an appraisal
effected by the independent appraiser acting under the provisions of the
Company's Equity Participation Plan.
12. Government and Other Regulations; Governing Law. This option is
subject to all laws, regulations and order of any governmental authority which
may be applicable thereto and, notwithstanding any of the provisions hereof,
the Holder agrees that he will not exercise the option granted hereby nor will
the Company be obligated to issue any shares of stock hereunder if the
exercise thereof or the issuance of such shares, as the case may be, would
constitute a violation by the Holder or the Company of any such law,
regulation or order or any provision thereof. Without limiting the generality
of the foregoing, the Company shall not be obligated to issue any such shares
if in the Company's sole judgment to do so would cause the Company or such
issue not to be in compliance with the requirements of Rule 504 promulgated
under the Securities Act of 1933 as amended. The Company shall use reasonable
efforts in order to cause the exercise of this option or the issuance of
shares pursuant hereto to comply with any such law, regulation, order or
provision. In the event that the Company has failed, after using its
reasonable efforts for a period of one year, to cause compliance with any such
law, regulation, order or provision to be effected, the Company shall pay the
Holder an amount in cash equal to the difference between the exercise price
and the fair market value (as determined by an independent appraiser) of the
shares then purchasable hereunder, in consideration for the Holder's release
of all rights hereunder relating to such shares.
This option is and shall be subject in every respect to the provisions of
the Company's 1998 Incentive and Non-Statutory Stock Option Plan, as amended
from time to time, which is incorporated herein by reference and made a part
hereof. The Holder hereby accepts this option subject to all the terms and
provisions of the Plan and agrees that (a) in the event of any conflict
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between the terms hereof and those of the Plan, the latter shall prevail; and
(b) all decisions under and interpretations of the Plan by the Committee or
the Board shall be final, binding and conclusive upon the Holder and his heirs
and legal representatives.
This option shall be governed by and construed in accordance with the
laws of The Commonwealth of Massachusetts.
12. Effective Date; Shareholder Approval. This option shall be
effective on the Effective Date; provided, however, that this option shall be
null and void, and no portion of this option shall be exercisable or
exercised, in the event that the shareholders of the Company have not approved
the Plan by the first anniversary of the Effective Date.
IN WITNESS WHEREOF, the parties have executed this option, or caused this
option to be executed, as of the effective date.
TEMPTRONIC CORPORATION
By: /s/ Thomas Gerendas
--------------------------
Acknowledged and accepted:
/s/ William M. Stone
----------------------------
Holder
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